Assisted Decision Making and Discharge from Wardship
Since the 26th April 2023 the law relating to how vulnerable adults who may have difficulty making decisions on their own has changed. This difficulty with making decisions might arise, for example, as a result of mental illness, an acquired brain injury or other medical condition or vulnerability. The types of decisions might relate to property, finances, personal welfare, healthcare, or living arrangements.
What was the law before 26th April 2023?
Previously if there were issues with your decision making capacity you might have been made a Ward of Court. This involved an application by yourself or another person (a “petitioner”) to the High Court. When a person was made a ward, the Court took charge of all of the person’s personal affairs and their property or estate. A “Committee” (who in many instances was one person and in many cases was a family member) might have been appointed by the Court to take decisions for the person. In some cases the General Solicitor for Minors and Wards of Court, an official of the court, was appointed as Committee.
What has changed since 26th April?
The new law (the Assisted Decision Making (Capacity) Act 2015) is bringing an end to the old system of wardship. Under the new law a vulnerable adult will be able to enter into agreements with a “decision supporter” to assist them. There are two types of agreement.
- A decision making assistance agreement allows you to appoint someone you know and trust as a decision making assistant to assist you with making decisions, for example by providing and explaining information in a way that you are more easily able to understand. The decision making assistant also helps you to let other people know what your decision is.
- A co-decision making agreement allows you to appoint a person you know and trust as a co-decision maker to make certain decisions jointly with you.
Are there any other types of support arrangement?
There are two other types of support arrangement that can be made to plan ahead for a time when they might be needed in the future when a person might have issues with their decision making capacity. You do not need to have any current difficulty or need for support in taking decisions to make either of these arrangements.
- Enduring Power of Attorney – You can appoint someone you know and trust as an “attorney” to make certain decisions on your behalf in the event that you are unable to do so at some point in the future. The decisions can be about personal welfare and property and financial matters and you can given your attorney general authority to make decisions or authority to do specific things on your behalf. This type of arrangement could be made before the new law commenced but changes have been made to how EPAs are made, registered and brought into operation, when they are needed and how they are supervised
- Advance Healthcare Directive –You can write down your wishes about healthcare and medical treatment decisions in case you are not able to make those decisions yourself at some time in the future. This includes treatment that you do not want. You can also appoint someone you know and trust to ensure that your decisions and wishes in this document are followed in so far as they can be. In other countries similar documents are sometimes called “living wills” or “advance decisions to refuse treatment” and you may have heard these other terms used before.
How I do I draw up a support arrangement?
Details of how to make a decision making assistance agreement, a co-decision making arrangement, an enduring power of attorney, or advance healthcare directive are available on www.decisionsupportservice.ie . They can be done using the My DSS system.
You do not need to have a lawyer draw up an agreement if you do not want to but where you do want legal advice and assistance, you can apply for legal services to the Legal Aid Board as outlined in this leaflet. Particularly, where you are making an enduring power of attorney you will need to get a “legal practitioner statement” from a lawyer. The lawyer will interview you about your understanding about what the effect of the enduring power of attorney coming into force will be.
If you want to make a co-decision making agreement or an Enduring Power of Attorney, you will need a form signed by your doctor or another healthcare professional called a “statement of capacity form”.
Full details of what is required for each type of agreement can be found on the Decision Support Service website.
What if I can’t enter into an arrangement? What if I know a person who needs assistance, but they can’t or won’t enter into an arrangement?
An application to can be made to the Circuit Court in these circumstances. The Court may make a declaration that a person lacks the ability to make certain types of decisions, unless they make a co-decision making agreement, or that they lack capacity even if they enter a co-decision making agreement Where the court decides that a person lacks capacity to make certain types of decisions (even with a co-decision maker), or if no co-decision maker is appointed, the Court can then either step in and make these decisions on behalf of that person, or it can appoint a person (known as a “decision making representative” (DMR)) to make these decisions on their behalf.
This is similar in some respects to the old wardship system, but differs, because the decision making representative can only make the types of decisions that are set out in the court order.
In some cases the decision making representative will be a person who is known to the person who the Court has decided has difficulty making certain decisions. In other cases, where no one known to the person is willing or able to act as a DMR, then a professional DMR can be appointed, from a panel of DMRs maintained by the Decision Support Service.
What happens to existing wards of court?
Existing wards of court will be discharged, over a three year period beginning 26th April 2023, by the court that took them into wardship. In most cases this is the High Court. The application for discharge can be made by the ward themselves, or by their Committee, or by certain other persons, with the leave of the court. If no application is made for discharge by any of these parties, then the Court may review the ward’s case and make the discharge order on its own motion.
The Court will decide whether or not the ward needs a support arrangement under the Act. This may be a co-decision making agreement or the appointment of a decision making representative or both in relation to different types of decision. In some cases the Court may decide that the ward does not need any further support.
Is state-funded legal advice available?
If you cannot afford a lawyer, you can obtain state-funded legal advice in relation to the making of any of the decision support arrangements.
You will need to satisfy a means test. Your income (after we deduct certain allowances) must be less than or equal to €18,000 per annum and your capital assets (items like your car, money in the bank, or real property, but not the house in which you live) must total less than €100,000.
Do I have to pay for legal advice from the Legal Aid Board?
Yes you will have to pay a contribution ranging from €30 to €150. Most people will only have to pay the €30, but this will depend on your disposable income.
Is legal aid available?
If you want to issue proceedings under the Act or if you are served with proceedings under the Act, for example, to seek a declaration of capacity from the Court in respect of yourself or another person or in relation to an application for discharge from wardship, you may apply for legal aid from the Legal Aid Board.
- the application involves the making of a declaration as to your capacity, and if you are the person whom the application relates to, or
- you are a ward and the application is for your discharge from wardship
you do not need to satisfy the means test. We will still assess your means and if you would not normally be eligible for legal aid, you might need to pay us back some of the cost of the legal aid at the end of the case. Your lawyer will discuss this aspect with you. Your will not have to pay any charge upfront for legal aid.
In all other cases you will need to satisfy the same means test that applies to legal advice as set out above. You will also have to pay a contribution starting from €130. This contribution may be more depending on your means or assets. If you do not satisfy the means test, you cannot be provided with legal aid.
In all cases, merits and other criteria will need to be satisfied. The merits criteria basically asks if you would take the case if you were spending your own money on it and if a lawyer would advise you to take the case if you were paying them out of your own money. The Board will not consider the prospects of success of the case nor will it examine the cost of the proceedings v the benefit to you of taking them in deciding whether to grant legal aid to you.
If you are a ward and your Committee is the General Solicitor, you may wish to speak to their office before making an application for legal aid.
How do I apply for legal advice or legal aid from the Legal Aid Board?
You will need to apply to your local Legal Aid Board law centre. A list of all law centres is available here. You can also apply online on www.legalaidboard.ie.
Who will provide my legal advice or legal aid? Do I need to have my own solicitor?
In some cases a law centre will provide your legal advice or legal aid. In such cases your lawyer will be a solicitor who works in the law centre. You will not be able to choose your solicitor.
In other cases you will be referred to a panel of solicitors who work in private practice but who have agreed to take on legal aid cases. In this case you can choose your own solicitor from a list of solicitors who are on the panel for this area of work. The solicitor must be a member of the panel and the solicitor must agree to take your case. You cannot choose a solicitor who is not on the panel.
What is the Decision Support Service?
The Decision Support Service is part of the Mental Health Commission. It is responsible for registering, supervising and regulating the various decision support arrangements. If you have a complaint about a decision supporter, you can make it to the DSS. Information about the DSS is available on their website at www.decisionsupportservice.ie